Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02163-BNB-MEH

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Filed 07/20/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-PC-2163 (MEH) SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. EL PASO PROPERTIES, INC., Defendant. ______________________________________________________________________________ RESPONSE TO PLAINTIFFS' MOTION FOR LEAVE TO CONDUCT INSPECTION OF INTERIOR OF ROOSEVELT TUNNEL ______________________________________________________________________________ Defendant El Paso Properties, Inc. ("El Paso"), hereby responds to Plaintiffs' Motion for Leave to Conduct Inspection of Interior of Roosevelt Tunnel and states as follows: I. Plaintiffs' Request to Inspect the Roosevelt Tunnel is Futile. Plaintiffs have requested permission to conduct a one-day inspection of the interior of the Roosevelt Tunnel "in August or September 2006." Plaintiffs' Motion at 1. The only legal authority cited in Plaintiffs' motion is FED.R.CIV.P. 26(b) and 34. During the requested inspection, Plaintiffs plan to have three or four unidentified individuals "conduct water quality sampling, solids sampling, flow measuring, photography, video taping and dye testing." Id. Plaintiffs assert that they do not intend to identify any new expert witnesses or offer any new expert opinions. Id. at 2. However, the stated purpose of the inspection is "to generate additional factual information which then will be provided to the existing expert witnesses for Plaintiffs and Defendant." Id. Specifically, Plaintiffs intend to study: (a) whether there is a

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hydrologic connection between the El Paso shaft and the Roosevelt Tunnel portal; and (b) whether the pollutants discharging from the El Paso shaft into the Roosevelt Tunnel make their way to the portal and into Cripple Creek. Id. FED.R.CIV.P. 26(b)(2)(ii) provides that the Court has the power to limit discovery upon a determination that "the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues." Trial in this matter is scheduled to commence on October 30, 2006. A one-day inspection of the interior of the Roosevelt Tunnel conducted one to two months prior to trial will be burdensome to the Court and parties and will not yield sufficient evidence to overcome the existing deficiencies in Plaintiffs' case. This litigation was filed in November 2001, nearly five years ago. In order to prevail on their claims, Plaintiffs must show an ongoing discharge of pollutants at the time of the commencement of the case. Therefore, the focus of Plaintiffs' case is alleged discharges into navigable waters occurring between 1996 and 2001. Plaintiffs have not explained how evidence to be gathered in August or September 2006 is relevant to the claims at issue in this case. In a memorandum prepared less than two months before Plaintiffs filed their 60-day notice in this case, the Colorado Water Quality Control Division ("WQCD") reported "the effects of the workings on the hydrology is uncertain because of the limited information." See, Exhibit 1 at 2. On appeal, the Tenth Circuit noted that the memorandum's conclusion that "more
RESPONSE TO MOTION FOR LEAVE TO CONDUCT INSPECTION Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 2

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work needs to be done before the responsible parties can be identified" is consistent with El Paso's position in this case. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1148-1149 (10th Cir. 2005), cert. denied sub nom. El Paso Properties, Inc. v. Sierra Club, 126 S.Ct. 1653 (2006). A one-day inspection of the interior of the Roosevelt Tunnel would be futile because it would not appreciably address deficiencies in the existing data records, particularly in light of the fact that no water quality sampling, flow measurements, or other hydrological studies have occurred during the past five years. The experts will not be able to reliably correlate any evidence generated in August or September 2006 with conditions existing during the past ten years. II. Plaintiffs Have Had Ample Opportunity to Inspect the Roosevelt Tunnel and Reopening Discovery 1-2 Months Before Trial Will Severely Prejudice El Paso. FED.R.CIV.P. 26(b)(2)(ii) provides that the Court has the power to limit discovery upon a determination that "the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought." Plaintiffs could have entered the Roosevelt Tunnel anytime they chose in the past five years without El Paso's permission. To enter the Roosevelt Tunnel portal, Plaintiffs would merely have had to contact the Bureau of Land Management for permission. Instead, Plaintiffs decided to rest their case upon one interior inspection performed by Kenneth Klco in August 2001. On June 11, 2002, Plaintiffs filed a Motion to Compel Access to Roosevelt Tunnel. On June 26, 2002, El Paso tendered its copy of the Roosevelt Tunnel key to the Court. To El Paso's
RESPONSE TO MOTION FOR LEAVE TO CONDUCT INSPECTION Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 3

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knowledge, the Plaintiffs never actually followed up and inspected the interior of the Roosevelt Tunnel. If Plaintiffs have entered the tunnel since 2001, they have failed to disclose the entry and supplement their discovery responses herein pursuant to FED.R.CIV.P. 26(e). Plaintiffs have not shown good cause for reopening discovery in this case one to two months before trial. Plaintiffs had ample opportunity to conduct inspections of the Roosevelt Tunnel prior to filing their lawsuit and in the five years since the lawsuit was originally filed and yet failed to do so. Therefore, Plaintiffs' Motion should be denied. Furthermore, reopening discovery at this late date will severely prejudice El Paso. El Paso was served with the Complaint in November 2001. The Court entered a Scheduling Order in this case on February 20, 2002. The Scheduling Order recites that Plaintiffs anticipated introducing expert testimony in the field of the "hydrological connection of Defendant's property to Roosevelt Tunnel," among others. See, Scheduling Order at 6-7, § 6(d)(1). The Scheduling Order established a discovery cut-off of August 20, 2002 and required the parties to designate experts by June 20, 2002 and rebuttal experts by July 20, 2002. See, Scheduling Order at 7, §§ 6(d)(3) & (4). The Tenth Circuit remanded the case to the Court in October 2005. The Court held a status conference on December 2, 2005. During the status conference, Plaintiffs' counsel disclosed that Plaintiffs intended to inspect the Roosevelt Tunnel again. The Court advised Plaintiffs that they would need to file a motion for permission to conduct additional discovery in the case. However, Plaintiffs waited an additional six months ­ until June 30, 2006, just four
RESPONSE TO MOTION FOR LEAVE TO CONDUCT INSPECTION Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 4

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months before the scheduled trial date ­ to file their motion requesting permission to enter the Roosevelt Tunnel. Trial is scheduled to commence on October 30, 2006. On May 4, 2006, the Court ordered that a Final Pretrial Conference shall be held on August 21, 2006 at 9:00 a.m. The Order also recites that the proposed pretrial order is due on or before August 16, 2006. The Court entered a Civil Trial Procedures Order that sets a final trial preparation conference for September 25, 2006. According to the Civil Trial Procedures Order, exhibit and witness lists must be submitted to the Court by September 22, 2006. At this late date, Plaintiffs' untimely request to generate more evidence in this case is prejudicial to El Paso. The earliest that Plaintiffs could arrange a second inspection of the Roosevelt Tunnel is August 2006, less than three months prior to trial. Moreover, the field investigation proposed by Plaintiffs will not generate instantaneous results. During the inspection, Plaintiffs seek to collecting water and solid samples and inject dye into flowing water. However, these actions are but the first steps in generating evidence that can be considered by the experts. If Plaintiffs collect samples, those samples will then need to be transported to a laboratory and analyzed with appropriate quality controls, a process that can take weeks or even months. After the laboratory analysis is complete, the sampling results will need to be distributed to the parties' experts, who will then need to evaluate the additional data and consider the information in relation to their opinions. Supplemental expert disclosures will then need to
RESPONSE TO MOTION FOR LEAVE TO CONDUCT INSPECTION Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 5

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be exchanged by the parties, allowing adequate time for rebuttal and additional discovery as needed (including possible depositions). Even under the best case scenario, this process will take one to two months to complete and El Paso will be receiving new evidence from the Plaintiffs just 1-2 two months prior to the start of trial. The parties will not be able to meet pre-trial deadlines established by the Court. Alternatively, this case will need to be reset for trial at some later point in time. Plaintiffs' renewed interest in inspecting the interior of the Roosevelt Tunnel is a direct response to Judge Marcia Krieger's ruling in the CC&V Case, which held that the Plaintiffs failed to present any evidence "which identifies the source of the water that is discharged at the portal, or to the extent it comes from a number of sources, what chemical constituents are contributed by each source." Exhibit 2 to Motion for Judgment on Basis of Collateral Estoppel at 23-24. Plaintiffs' request to re-open discovery is nothing more than a thinly-veiled attempt to cure their failure of proof in the CC&V Case by generating additional evidence they hope will support this case during the inspection. In the absence of any good cause to re-open discovery, the prejudice to El Paso outweighs any benefits to be gained and the Plaintiffs' Motion must be denied. III. El Paso Does Not Have A Key to the Roosevelt Tunnel. Plaintiffs' motion requests an order requiring El Paso "to provide a current copy of the key(s) to the gate at the Roosevelt Tunnel portal so Plaintiffs can access the interior." Plaintiffs' Motion at 2. However, El Paso does not possess any key for the gate at the Roosevelt Tunnel
RESPONSE TO MOTION FOR LEAVE TO CONDUCT INSPECTION Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 6

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portal. El Paso produced its only copy of the key to the Clerk of Court on June 27, 2002 upon demand by the Plaintiffs. Copies of El Paso's tender of the key and the Clerk's order verifying its receipt are attached hereto as Exhibit 2. CONCLUSION WHEREFORE, El Paso respectfully requests that the Court deny Plaintiffs' Motion for Leave to Conduct Inspection of Interior of Roosevelt Tunnel, and enter such other and further relief as may be just, fair and equitable. Respectfully submitted this 20th day of July, 2006. _s/ Stephen D. Harris Stephen D. Harris MERRILL, ANDERSON, & HARRIS, LLC 20 Boulder Crescent Colorado Springs, Colorado 80903-3300 (719) 633-4421 (telephone) (719) 633-4759 (facsimile) [email protected] Counsel for El Paso Properties, Inc.

RESPONSE TO MOTION FOR LEAVE TO CONDUCT INSPECTION Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 7

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Filed 07/20/2006

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing RESPONSE TO PLAINTIFFS' MOTION FOR LEAVE TO CONDUCT INSPECTION OF INTERIOR OF ROOSEVELT TUNNEL was sent with the Clerk of Court using the ECF system, which will send notification of such filing to the following: John M. Barth, Esq. Attorney at Law Post Office Box 409 Hygiene, Colorado 80533 [email protected] Roger Flynn, Esq. Jeffrey C. Parsons, Esq. Post Office Box 349 412 High Street Lyons, CO 80540 [email protected] [email protected]

s/ Sarah D. White Sarah D. White, Staff Assistant

RESPONSE TO MOTION FOR LEAVE TO CONDUCT INSPECTION Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 8